US federal judge Jeremy Fogel has decided that Yahoo! can't be bound to pay a fine imposed by a French court over the sale of Nazi memorabilia on Yahoo's US Web site.
By deciding to consider whether law courts could determine what Web sites based in other countries can host, he had already created a dangerous precedent. By ruling that the company can't be held to account, he risks provoking years of in-fighting between different countries' legal systems.
This time last year, a French judge ruled that Yahoo! must prevent any French citizens from viewing any Nazi goods that were up for sale, even if the goods were on a US Web site and would not be shipped to France. It is illegal under French law to display or sell anything which incites racism.
The French judge said the company would be fined $13,000 per day for every day over a 90-day deadline if people living in France could still view the items. Despite expert opinion that it was technically possible to restrict viewing for French citizens, Yahoo! wisely decided just to pull all Nazi memorabilia.
The French judge could have ruled that as long as the site was not hosted in France, the goods were not sold in France and that none of the goods would be sold or shipped to France, then it was not illegal. Instead, he decided to attempt to extend his power over the Internet - and hence the world.
As Yahoo! decided to pull the goods in question, there was no problem. It did however apply to its own courts to decide whether the French court had the right to make that decision. It found a judge willing to hear its appeal in Judge Jeremy Fogel, who has been making a name for himself for attempting to pull Internet implications into existing law.
Perhaps it was inevitable that judges in different countries would clash at some point, not thinking of the wider implications of their decisions but their own parochial concerns.
"We are extremely happy about this," said one of Yahoo!'s lawyers, Mary Catherine Worth, no doubt because the decision will keep the legal profession busy for the next decade. "This has very broad implications for everyone, not only companies but also for individuals who operate Web pages here in the United States."
This is a battle not for justice but between judicial systems. It has been a disaster waiting to happen ever since the three experts - once of which was the current head of ICANN Vint Cerf - told the judge that a total blocking ban of Internet users from one particular country was possible.
A week after the judge's decision, one of the three - Ben Laurie - wrote an "apologia" saying that he hadn't considered the political implications and was thinking only of technical feasibility. ®
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